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November 5, 2005
Alito Smear #3: The Rock-Ribbed Racist's Candidate

Normally I page through most of the news stories in a day's media output, selecting a handful as interesting and "staging" them in a separate Firefox session before deciding which ones to analyze. Occasionally, however, I find one so offensive and remarkable that I drop everything and start immediately. Thus I came to Colbert King's screed in the Washington Post this morning on his opinion of judicial conservatism/originalism and its proponents. Titled "Credentials Are Fine, but Values Matter, Too," King pulls out the race card with no substantiation whatsoever:

Thus sayeth the high priests of far-right conservatism: To be worthy of appointment to the Supreme Court, a nominee must be scholarly, a great intellect and a possessor of sterling conservative credentials. In addition, the nominee should come equipped with a well-established constitutional philosophy, experience in constitutional law and the ability to divine what the Constitution means through analysis of its words and structure. In addition, they say, the nominee must have a proven ability to write clearly, argue incisively and have well-known opinions on judicial philosophy.

Unspoken, but well understood, is that to be short-listed it certainly doesn't hurt to be white, male and straight.

Says who? Name me one prominent proponent of originalism/conservatism who didn't have Janice Rogers Brown shortlisted for the openings on the court that eventually went to John Roberts and Samuel Alito. I guarantee King that a Brown nomination would have delighted those proponents far more than Roberts did. Perhaps King could answer why Janice Rogers Brown didn't get that nomination. It's because all of his liberal allies in the Senate threatened to Bork her if Bush dared elevate her to the Supreme Court. The same threat applied, by the way, to top conservative shortlisters Priscilla Owen, Edith Hollan Jones, and still applies to Henry Saad for the appellate court.

And King argues that conservatives prefer white males? Puh-leeze. Democrats will not allow the Bush administration to push nominees other than white males onto the Supreme Court because to do so would be to acknowledge that all African-Americans, women, and other demographic groups do not think alike, and in fact have quite a diversity of political thought. Acknowledging that as legitimate undermines the last refuge of the Democtratic scoundrels: herd mentality, as Rep. Albert Wynn put it so well this week in Maryland.

The rest of King's column is ridiculously incoherent. Nowhere does he provide any kind of support for his ludicrous assertion about the motives of conservatives backing the Alito nomination. Instead, he makes an argument that conservatives would have loved the attorney for South Carolina who argued for the losing side in Brown v Board of Education by promoting stare decisis. John Davis' efforts focused on holding to the "superprecedent" of Plessy v Ferguson rather than the plain language of the 14th Amendment, a point that King waves around but obviously remains unaware of the hilarious irony it provokes.

Just which side in today's debates on nominations requires worship of stare decisis? It's not the conservatives, I assure you.

King's point, to the extent that he has one, is that appellate jurists need to have a sense of justice, not just a sense of law. This assertion demonstrates that King has no idea what appellate courts do or their purpose under the law. The presiding court determines the facts in a case; appellate courts only review the application of laws and procedures and the actions of the judge to determine that the determination of fact proceeded fairly and constitutionally, and whether the applicable laws pass constitutional muster. Most cases have juries as fact-finders, but even in those which don't, appellate courts do not lightly substitute their own judgment for that of the presiding jurist.

King also misunderstands the nature of law. If he wants the law and justice to be synonymous, as most of us do, then he needs to press the legislature to write laws in such a manner that allows that. For the most part, our system does that very well, despite the occasional and well-reported failures we see. But even when we fall short, the appellate courts do not exist to act as a superlegislature to create new law based on their feelings about one particular defendant or plaintiff. King faults Robert Bork and John Roberts for not reading the Constitution "generously" in this regard -- but that's a job for the people and their elected representatives, not nine robed masters with lifetime unaccountability.

We have seen what happens when we go down that path, as we have for forty years. The Court takes more and more power to legislate from the people, declaring more and more of their decisions as definitions of absolute "rights" more unassailable than even the First Amendment, and in general starting to act like a Guardian Council who must bless all acts of legislature before enforcement rather than the simple Constitutional check the founders envisioned.

Shame on King for his ad-hoc and completely unfounded attack on conservatives this morning, and shame on his editors for allowing such a ridiculous and unsupported charge to make it to publication.

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Posted by Ed Morrissey at November 5, 2005 8:07 AM

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